Garland v Dillon
[2005] TASSC 111
•14 November 2005
[2005] TASSC 111
CITATION: Garland v Dillon [2005] TASSC 111
PARTIES: GARLAND, Christian
v
DILLON, Elina Ruusula
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 176/2005
DELIVERED ON: 14 November 2005
DELIVERED AT: Hobart
HEARING DATE: 18 October 2005
JUDGMENT OF: Tennent J
CATCHWORDS:
Succession – Wills, probate and administration – The making of a will – Revocation – Presumption of destruction of lost will animo revocandi – Rebuttal of presumption – Proof of will by photocopy.
Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561, applied.
Aust Dig Succession [57]
REPRESENTATION:
Counsel:
Plaintiff: J F Otlowski
Defendant: J W Avery
Solicitors:
Plaintiff: Simmons Wolfhagen
Defendant: Avery & Partners
Judgment Number: [2005] TASSC 111
Number of paragraphs: 38
Serial No 111/2005
File No 176/2005
CHRISTIAN GARLAND v ELINA RUUSULA DILLON
REASONS FOR JUDGMENT TENNENT J
14 November 2005
Tina Margot Ruusula ("the deceased") died at Hobart on 25 July 2004. At the time of her death she was 36 years old. On 2 February 2004 she made a will. By that will she appointed Dr Christian Garland ("the plaintiff") the executor of her estate and left the entirety of her estate to a Peter Rozynski ("R"). She specifically excluded her sister from receiving any benefit from her estate.
After the death of the deceased, only a photocopy of the will could be found. This is an application by the plaintiff to prove the will dated 2 February 2004 by the production of the photocopy. The application is opposed by the deceased's sister, Elina Maria Ruusula aka Dillon ("the defendant"). That opposition is based on the presumption that as the original of the will cannot be found, it is presumed it was destroyed by the deceased prior to her death with the intention of revoking it.
The law
The principles to be applied are not in dispute. Counsel for the plaintiff referred to the New South Wales decision of Campbell J in Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561 for an updated summary of these principles. At par55, Campbell J said:
"First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will."
His Honour then referred to Whiteley v Clune (No 2); The Estate of Brett Whiteley, unreported Supreme Court of New South Wales, Powell J, BC9301902 13 May 1993 at 26 – 27 where, at par26, Powell J said the following as to the present position in relation to the presumption:
"The present position would now seem to be as follows:
1 although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;
2 the strength of the presumption depends upon the character of the testator's custody over it (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434);
3 where the Will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371);
4 where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The 'rules' laid down in Sugden v Lord St Leonards (supra) are as follows: -
athe contents of any lost instrument, including a Will, may be proved by secondary evidence;
bwritten and oral declarations of a testator made before, or after, the execution of the Will are admissible as secondary evidence of its contents;
cthe evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;
dProbate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely.
It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra), although not overruled, has not escaped criticism (Woodward v Goulstone (supra); Atkinson v Morris [1897] P 40) so that it is improbable that the 'rules' will be extended."
Campbell J continued at par59:
"The cases to which Powell J referred as authority for the proposition that 'the strength of the presumption depends upon the character of the testator's custody over it' explain by example what is meant by the expression 'the character of the testator's custody over it'. It refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it."
The present case
There was no dispute that a will had been made by the deceased on 2 February 2004, that it revoked all prior wills, that there was evidence of its terms and that it had been duly executed. The only issue for determination was whether the presumption as to the revocation of that will, arising out of the fact that the original cannot be produced, has been able to be rebutted by the plaintiff.
The will
The terms of the will were as follows:
"my last will and testament
I, TINA RUUSULA
currently of 20 Feltham Street
North Hobart, Tasmania
name
DR CHRISTIAN GARLAND
of
38 Newdegate Street
North Hobart, Tasmania
as the sole and legal executor of my estate.
Should he pre-decease me,
I thence name his daughter,
MORGANA
as the sole and legal executor of my estate.
I name
PETER ROZYNSKI
of
14 Denison Street
South Hobart
as the sole beneficiary of my estate.
In the event that Peter Rozynski should pre-decease me,
I am content that the rest of his family inherit what there is of my estate,
because they seem to have all adopted me when I felt like such an orphan.
I do still have a sister in Australia
but she has never cared about me,
so I have unofficially divorced her,
and many of my friends can understand and explain why.
When I die
I want my body to be donated for scientific research;
after I'm dead it doesn't matter what happens to my body.
I believe also that this would avoid anyone funeral expenses [sic].
My body is completely unimportant to me;
most of my body is a ship-wreck anyway,
but it might still be of some use to science students.
I don't care about being carved up and all the rest of it –
it is nonsense to care about it –
it is the still living that are still
worth care about [sic].
This is my absolute and final decision.
But I would like to be held a memorial by the sea,
which has always been my passion.
Preferably on the Bruny Island Ferry,
Or on Taroona Beach.
Anywhere close to the sea, or the river."
Facts
The bulk of the evidence put before the Court was in the form of affidavits. Three witnesses were cross-examined - the plaintiff, the defendant and R.
The evidence disclosed that the deceased met the plaintiff in about December 2002. He formed a relationship with her which ended about March 2003. While what might be described as an intimate relationship ended, they remained friends until the deceased died. In fact, the plaintiff described himself as being the deceased's confidante. He saw her and spoke to her regularly.
The plaintiff described the deceased, in the last couple of months of her life, as being very unhappy with life and becoming more erratic. In that context, counsel for the defendant put to him that he would not have been surprised if the deceased had torn up the will she had made. In response the plaintiff said the deceased confided in him and he would have been surprised if she had done that without telling him. He said he was sure that she would have told him if she had destroyed the will or not wanted him as executor.
The evidence also disclosed that in May 2003 the deceased's father died and over the next number of months the plaintiff provided a significant amount of moral support and physical help to the deceased in sorting out her father's affairs.
In October 2003 the deceased told the plaintiff she wished to make a will and began drafting it on his computer. On 25 October 2003 she gave him a copy of it, signed by himself and another person as witnesses. The copy did not have the deceased's signature on it. It named a Denis Robinson as the executor and sole beneficiary and the plaintiff as the executor and sole beneficiary in the event Robinson predeceased the deceased. The plaintiff did not know what happened to the original of that will. He did not know Mr Robinson and understood he was a previous lover of the deceased.
That particular will contained a clause in the following terms:
"As I have discussed with the above-mentioned people, and other friends, I am excluding my sister from this will. My friends will explain why."
In or about August/September 2003 the deceased met R. He was many years older than she, but they formed a relationship. That relationship continued through to at least April 2004. He travelled to New Zealand in May 2004 and was out of the State until early July. He was cross-examined about when his relationship with the deceased ended. He said it ended when he came back from New Zealand and not before he went. The relationship, whatever its basis, was obviously not on the same level after R returned because what does not appear to be disputed was that the deceased embarked on a sexual relationship with another man about 5 weeks or so before her death. However whenever the deceased and R parted, they appear to have parted on good terms and still communicated after his return from New Zealand.
In or about January 2004 the deceased told R she was going to make a new will leaving her estate to him. He told her not to do so, but instead to leave her estate to her sister. She then proceeded to prepare a will on her computer. The next day she told him she had done it. A few days later she gave him a yellow A4 envelope. She said it contained her will and asked him to take it to work and copy it for her. She told him she had named the plaintiff as executor and she wanted to give him a copy. R took the envelope to work and made two copies of the will. He replaced them in the envelope and returned it to the deceased. He did not look closely at the document he was given and could not recall if it was signed or not. He saw the deceased put the envelope on the table next to her bed.
R did not see the will again, nor did he have any further discussion with the deceased about it.
On 1 March 2004 the deceased gave the plaintiff a sealed envelope. The evidence of R was that the envelope the deceased took to the plaintiff looked like the one in which he had put the original and copy will. The deceased told the plaintiff she had made another will and that the envelope contained that will. She asked that he not open the envelope until after her death. He wrote the date he received it on the envelope. The envelope had written on the front in the deceased's writing the words "Tina's Will". The deceased told the plaintiff that he was the executor and that R was the sole beneficiary. She told the plaintiff emphatically that she did not want her sister to benefit from her death. That evidence was not challenged and I infer that the deceased at least believed she had given the original will to the plaintiff.
The plaintiff did not open the envelope initially, but did so about a month after receiving it. He did so because the deceased was drinking heavily and seemed erratic and confused. He read the document and then put it back in the envelope. It was not until solicitors examined that document after the deceased's death that it appears it was realised it was a copy only. The plaintiff never saw the original will and relied on the deceased's advice to him, and writing on the envelope he had been given, as to his belief that he held the deceased's original will.
If, as I infer, the deceased gave the original of the second will to R to copy, there can be no doubt on the evidence that the last sighting of that original will by anyone other than the deceased was when it was returned to the deceased by R shortly before 1 March 2004. After the deceased's death, extensive searches and enquiries failed to produce the original of the will, or indeed any other will of the deceased. The plaintiff said he was unaware of any other testamentary writings of the deceased.
The presumption raised by the defendant as a consequence of the inability to produce the original will is that the deceased, some time between 1 March 2004 and her death, destroyed it with the intention of revoking it. The plaintiff argues that there is sufficient evidence before the Court to rebut that presumption and to persuade it that the original will has simply been lost and not deliberately destroyed by the deceased.
It is necessary therefore to look at the facts surrounding how the original will was kept and the situation concerning the deceased and her relationships with others which existed in those few months between March 2004 and her death.
Custody of the original will
The deceased lived in a house she shared with its owner, Steven Price. There has been no suggestion on the evidence of anything other than a platonic relationship between them. She occupied one bedroom and a study. The bedroom contained, apart from basic furniture, a cardboard box full of files and memorabilia and two rubbish bins which were often overflowing with rubbish. The bed was never made, clothes were left lying around, whiskey bottles were left under or beside the bed and CDs without covers left lying around. R described the room as messy and untidy. In contrast, the study area where the deceased's computer was and where she wrote was always neat and tidy.
In this context, the last place the original will was seen to be put was in the bedroom on the table beside the bed.
About the deceased
The deceased was described by a number of witnesses. The plaintiff described her as complex, intense, very bright, idealistic, passionate and very ill. There is no doubt she was a highly intelligent young woman. She had gained an arts degree with honours and she wrote and had published poetry. However, she had a number of problems. She had an accident some years before her death which left her with physical disabilities. She had a longstanding problem with alcohol abuse. She had attempted suicide.
The deceased craved companionship, and frequently male companionship. The term "promiscuous" was suggested in relation to her, a description with which R reluctantly agreed. She was described by R as gregarious, emotional and fickle.
At least twice in the year before her death the deceased made wills which benefited males with whom she had relationships. However, it would seem her decisions to do so were not necessarily made impulsively in the first flush of a new relationship. That is apparent from the fact the making of the first will benefiting Robinson was made after her relationship with R began and it was not until she had been seeing R for some months that she decided to make a will in his favour. She also seemed to tell people what she was doing. She discussed the contents of both wills with the plaintiff and told R of her intentions. The will in favour of R also contained an indication of the deceased's feelings towards R's family. He also gave evidence that she was well liked by them.
Deceased's relationship with her sister
The defendant was 11 years younger than the deceased. When the defendant was 6 years of age, the deceased left home. The only time after that they shared a home was for a period of months only when the defendant was 18. In her affidavit, the defendant said at par4:
"That my sister and I were very close, and argued from time to time, as siblings do. However, I do not recall any serious misunderstandings or disputes."
At the time of the hearing the defendant was a single parent in her mid-twenties with two young children.
In par13 of her affidavit as it first appears, the defendant outlined some information about the relationships between the plaintiff and the deceased, and R and the deceased. That information is contrary to that supplied to the Court by both the plaintiff and R. For example, the evidence of the plaintiff and R was that R's relationship with the deceased began in August/September 2003 and continued at least through until he went to New Zealand in May 2004. The evidence of the plaintiff was his relationship with the deceased had ended by the time the deceased's father had died and that they were only friends after that. Further, the only suggested relationship with another man the deceased had post that with R was with the taxi driver Fred Hales, said to have occurred in the five weeks or so before the deceased's death.
In her affidavit the defendant went on to describe a telephone conversation she said she had with the deceased two weeks before she died. She said it was then her sister told her she had made a will leaving her estate to a friend. She further said in par13 (as it second appears) of her affidavit:
"THAT during the same telephone conversation two weeks before my sister died, she stated that she wanted to make a new will, naming me as beneficiary. She stated that she did not wish to leave her estate to her friend named as beneficiary in the will. She then either stated the reason for this was either she did not see them anymore or wasn't friends with them anymore, I am now unaware of the exact words she used. In fact, she joked that I was not to 'knock her off'. She also asked me 'if I die without a Will, intestate, will my money go to you, or will it go to Jo-Jo [our Father's widow]'. I replied 'no, I'm your next of kin and Jo-Jo is not a blood relative'. She asked me 'are you sure because Steve [her flatmate] said the money would go to Jo-Jo'. I did not become aware who the friend she referred to was till after she died."
In pars14 and 15 of her affidavit, the defendant provided an explanation as to why the deceased may have told of "divorcing" her, and why she apparently had little contact with her in the few weeks before she died. She said that her sister had "forgiven" her for not being more involved in sorting out their father's estate, although she did not say when this was said to have occurred.
It would be fair to say that the way in which the defendant characterised her relationship with her sister was at odds with other evidence.
That other evidence about their relationship can be found in the terms of the wills drawn in October 2003 and February 2004 and the evidence of the plaintiff.
By the wills drawn by the deceased in October 2003 and February 2004, she demonstrated clearly her wish that her sister not have any benefit from her estate. In the second document, the deceased could be said to have used even stronger language than in the first. There was evidence from the plaintiff that in March 2004 the deceased expressed to him in emphatic terms that she did not wish her sister to benefit.
The plaintiff, in his evidence, said that the deceased and her sister had a history of disliking each other and that what the deceased perceived as the defendant's failure to help with the clearing out of her father's house on Bruny Island after his death was a bone of contention. The plaintiff said that at the time the deceased was making the wills in October and February, he had queried with her whether it was a good thing cutting her sister out and suggested that she leave her estate to her sister's children. He said the deceased disliked her sister so intensely she could not even bring herself to do that.
Conclusions
I am satisfied the deceased made a will dated 2 February 2004 in terms of the photocopy now produced to the Court, that the intention to revoke prior wills is evidenced by the terms of it which are inconsistent with the earlier one, and that there is evidence that will was properly executed.
I am also satisfied that the presumption raised by the failure to produce the original of that will, that it may have been destroyed by the deceased with the intention of revoking it, has been rebutted. My reasons for so doing are as follows:
·The deceased made the will on 2 February 2004. She told the plaintiff and R of its existence and terms.
·The deceased believed she gave the original will to the plaintiff on 1 March 2004. By implication she believed she retained only a copy.
·The actual original will was last known to have been in an envelope given by R to the deceased shortly before 1 March 2004. There is no reason to doubt that. That envelope was last seen on the deceased's bedside table. What the deceased did with it or its contents between then and her giving an envelope with what she said was the original will to the plaintiff on 1 March is not known.
·The deceased's bedroom was a mess and consistently untidy. There were overflowing rubbish bins and a box of memorabilia. The deceased's behaviour was known to be erratic and she drank to excess. The likelihood of any document put on any surface in that room simply getting lost or being thrown out by mistake is high.
·Given the nature of the relationship between the deceased and the plaintiff, and the pattern which can be discerned from the deceased's making of her wills, she is likely to have told him were she intending to destroy the will and thereby revoke it, and also told him of her intention to benefit someone else. It is unlikely she would have allowed herself to die intestate.
·I am not satisfied the defendant has been entirely truthful about the nature of her relationship with her sister in the months leading up to the deceased's death. The defendant's description of that relationship is inconsistent with the statements made in two wills and the deceased's statements to the plaintiff about her relationship with her sister. It is also not consistent with the nature of the deceased's relationship with the plaintiff in that she obviously discussed matters with him, he was seeing her regularly before her death and yet there was no evidence from him as to any "reconciliation" with her sister, or talk of a new will. The evidence suggests the plaintiff saw more of, and spoke to, the deceased more than her sister did in the first few weeks of July.
As to the conversation alleged by the defendant to have occurred about two weeks before the deceased's death, I am not satisfied it occurred as stated, or at all. If it did occur, however, I am not satisfied that it follows the deceased would have destroyed an existing will without first preparing a new one, given her behaviour, until then.
It may be the defendant believed what she told the Court about the nature of the relationship and was just unwilling to disclose just how bad it was. However, it is the deceased's intentions which are more relevant here and I am not satisfied the deceased had sufficiently changed her intentions relating to the defendant that she would destroy an existing will either to achieve an intestacy or in advance of a new will favouring her sister.
Order
In all the circumstances there will be an order that the will of the deceased dated 2 February 2004 be proved in terms of the photocopy which is annexure CG4 to the affidavit of Christian Garland sworn 12 May 2005 and filed herein.